990 F.

2d 1552

UNITED STATES of America, Plaintiff-Appellant,

v.
Terry KING and Valerie Jean Burdex, Defendants-Appellees.
Nos. 92-2142, 92-2173.

United States Court of Appeals,

Tenth Circuit.
March 26, 1993.

Michael Edmund O'Neill, U.S. Dept. of Justice, Crim. Div., Appellate

Section, Washington, DC (Don J. Svet, U.S. Atty., and James D. Tierney,
Asst. U.S. Atty., Albuquerque, NM, with him on the brief), for plaintiffappellant.
Teresa E. Storch, Asst. Federal Public Defender, Albuquerque, NM, for
defendant-appellee Terry King.
Angela Arellanes, Albuquerque, NM, for defendant-appellee Valerie Jean
Burdex.
Before LOGAN, ANDERSON and BALDOCK, Circuit Judges.
BALDOCK, Circuit Judge.

The government appeals the district court's orders suppressing evidence as the
fruit of an unlawful seizure of Defendants Terry King and Valerie Jean Burdex.
The district court found that the police officer who seized Defendants lacked a
reasonable suspicion that they were involved in criminal activity; therefore,
Defendants' detention violated the Fourth Amendment. See Terry v. Ohio, 392
U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1967). The government contends that
the officer's conduct was reasonable under the circumstances and therefore did
not violate the Fourth Amendment. The government also argues that even if the
officer's conduct violated the Fourth Amendment, the drugs, which were
discarded by Burdex, were not the fruit of the unlawful detention. Our
jurisdiction arises under 18 U.S.C. 3731, and, in reviewing the district court's
order, we consider the evidence in a light most favorable to Defendants. United

States v. Horn, 970 F.2d 728, 731 (10th Cir.1992).

I.
2

On April 30, 1992, at approximately 1:15 p.m., Officer LeMasters of the

Albuquerque Police Department arrived at the scene of a traffic accident at a
busy intersection. One of the vehicles involved in the accident remained
disabled in the intersection, impeding the flow of traffic such that only one to
two vehicles per traffic light could proceed, and several bystanders had
gathered around the intersection. While investigating the accident, Officer
LeMasters' attention was diverted by a car with heavily tinted windows. The
driver was honking his horn incessantly, apparently in an effort to prompt the
preceding driver to proceed through the congested intersection. Officer
LeMasters testified that she approached the car in order to inform the driver of
the hazardous conditions and advise him to refrain from using his horn. As she
approached the car, the driver, King, ceased honking, partially rolled down his
window, and apologized for the commotion claiming that he was merely trying
to get through the intersection. Officer LeMasters then observed a nine
millimeter pistol, with a clip inside the weapon, on the driver's seat, partially
tucked under King's right thigh. State law permits motorists to carry loaded
weapons, concealed or otherwise, in their vehicles. See N.M.Stat.Ann. 30-72(A)(2) (Michie Supp.1992). Officer LeMasters also observed Burdex in the
passenger seat whom she had not seen earlier due to the tinted windows.

Upon observing the pistol on the front seat, Officer LeMasters drew her service
revolver, pointed it at King, and ordered him to place his hands on the steering
wheel, threatening to shoot him if he did not comply with her order. Officer
LeMasters testified that, while she did not suspect Defendants of being engaged
in any criminal activity, she took this action out of concern for the safety of
herself and the bystanders, despite the fact that King had not made any
threatening gesture or sudden movement. While holding her revolver on King,
Officer LeMasters radioed for assistance. Within a minute, Officer Palone
arrived, pulling her patrol car directly in front of King's car. Officer Palone
ordered King to exit the vehicle while keeping his hands in view, and King
complied. Defendant Burdex also exited the vehicle on the passenger side,
despite having been ordered to remain in the car. Officer Armijo, who had also
responded to the call for backup assistance, joined Officer LeMasters at the rear
of King's vehicle armed with a shotgun, and ordered Burdex onto a dirt area
approximately twenty-five feet from the car, and she complied. Meanwhile,
Officer Palone ordered King to move backwards and get down on his knees
which he did. Officer LeMasters handcuffed King, while Officer Armijo
removed the pistol from the front seat.

As the officers were busy securing King, Burdex, who had moved into the dirt
area at Officer Armijo's request, removed a bag from her pants and dropped it
near a utility box. Two bystanders who observed the incident informed the
officers which led Officer Armijo to retrieve a bag containing drugs. The
officers advised Defendants that they were under arrest for drug possession,
and a search incident to arrest uncovered $2,700 under the driver's side floor
mat and $400 in King's boot.

A federal grand jury indicted Defendants for various drug and weapons
offenses.1 Defendants moved to suppress the drugs, gun, money and statements
as the fruit of an unlawful seizure of their persons. Following an evidentiary
hearing, the district court, recognizing that state law permitted motorists to
carry loaded guns in their vehicles, see N.M.Stat.Ann. 30-7-2(A)(2) (Michie
Supp.1992), found that Officer LeMasters lacked a reasonable suspicion that
Defendants were engaged in criminal activity thereby rendering their detention
unlawful under Terry. The district court also found that the evidence was the
fruit of the unlawful detention, and therefore must be suppressed.

II.
6

At the outset, it is important to note the limited scope of the government's

appeal. The government does not contest the district court's finding that Officer
LeMasters lacked a reasonable suspicion of criminal activity. Accordingly, we
express no opinion on whether a police officer's observation of an apparently
loaded pistol partially tucked under a motorist's leg would support a reasonable
suspicion that the motorist was engaged in criminal activity other than to note
that the state law permitting motorists to carry guns in their vehicles,
N.M.Stat.Ann. 30-7-2(A)(2) (Michie Supp.1992), is not dispositive on the
issue. See Reid v. Georgia, 448 U.S. 438, 442, 100 S.Ct. 2752, 2754-55, 65
L.Ed.2d 890 (1980) (per curiam) ("[W]holly lawful conduct might justify the
suspicion that criminal activity was afoot."). Rather, the government argues that
Officer LeMasters' conduct must be judged under a reasonableness standard,
and her conduct was reasonable in light of the circumstances. Because the
government's challenge is limited to the proper legal standard and the
reasonableness of the officer's conduct, our review is de novo. See United
States v. Evans, 937 F.2d 1534, 1536-37 (10th Cir.1991) ("[U]ltimate
determinations of reasonableness under the Fourth Amendment, and other
questions of law, are reviewed de novo.").

A.
7

"[T]he Fourth Amendment's protection against 'unreasonable ... seizures'

includes seizure of the person." California v. Hodari D., --- U.S. ----, ----, 111
S.Ct. 1547, 1549, 113 L.Ed.2d 690 (1991) (citation omitted). Of course, not all
police-citizen encounters implicate the Fourth Amendment. See, e.g., Michigan
v. Chesternut, 486 U.S. 567, 574-76, 108 S.Ct. 1975, 1980-81, 100 L.Ed.2d 565
(1988); INS v. Delgado, 466 U.S. 210, 218-21, 104 S.Ct. 1758, 1763-65, 80
L.Ed.2d 247 (1984). See generally United States v. Bloom, 975 F.2d 1447,
1450-56 (10th Cir.1992). "[M]ere police questioning does not constitute a
seizure." Florida v. Bostick, --- U.S. ----, ----, 111 S.Ct. 2382, 2386, 115
L.Ed.2d 389 (1991). Moreover, " 'law enforcement officers do not violate the
Fourth Amendment by merely approaching an individual on the street or in
another public place....' " Id. (quoting Florida v. Royer, 460 U.S. 491, 497, 103
S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983) (plurality opinion)). Rather, a person
is seized for Fourth Amendment purposes when, considering all the
surrounding circumstances, the police conduct "would have communicated to a
reasonable person that the person was not free to decline the officers' requests
or otherwise terminate the encounter." Id. at ----, 111 S.Ct. at 2389. Applying
this standard to the case before us, we have little doubt that both King and
Burdex were seized when Officer LeMasters ordered King at gunpoint to place
his hands on the steering wheel or else be shot as such conduct would
communicate to both persons in the car that they were not free to decline
Officer LeMasters' request or otherwise terminate the encounter.
8

Be that as it may, the protection of the Fourth Amendment does "not ...
guarantee against all ... seizures, but only against unreasonable ... seizures."
United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 1573, 84 L.Ed.2d
605 (1985). Prior to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889
(1968), Fourth Amendment seizures of the person were analyzed in terms of
arrest, and reasonable only if supported by probable cause. See Dunaway v.
New York, 442 U.S. 200, 208, 99 S.Ct. 2248, 2254, 60 L.Ed.2d 824 (1979).
Terry was the first case to recognize that "the Fourth Amendment governs
'seizures' of the person ... [other than] arrests," 392 U.S. at 16, 88 S.Ct. at 1877,
and created a "narrowly drawn" exception to the probable cause requirement
for lesser government intrusions into an individual's liberty. Id. at 27, 88 S.Ct.
at 1883. See also Royer, 460 U.S. at 499, 103 S.Ct. at 1325 ("Terry and its
progeny ... created only limited exceptions to the general rule that seizures of
the person require probable cause to arrest.").

In Terry, a police officer observed three men who appeared to be casing a store
for an armed robbery. The officer approached the men and, believing they were
armed, patted down their outer clothing, discovering that two of them were
carrying guns, which led to concealed weapons charges. Narrowly framing the
issue as "whether it is always unreasonable for a policeman to seize a person

and subject him to a limited search for weapons unless there is probable cause
for an arrest," 392 U.S. at 15, 88 S.Ct. at 1876, the Court held:
10
where
a police officer observes unusual conduct which leads him reasonably to
conclude in light of his experience that criminal activity may be afoot and that the
persons may be armed and presently dangerous ... he is entitled for the protection of
himself and others in the area to conduct a carefully limited search of the outer
clothing of such persons in an attempt to discover weapons which might be used to
assault him.
11

Id. at 30, 88 S.Ct. at 1884. Terry has come to stand for two distinct
propositions--an investigative detention ("stop") in which a police officer, for
the purpose of investigation, may briefly detain a person on less than probable
cause, see United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104
L.Ed.2d 1 (1989), and a protective search ("frisk") which permits an officer, in
the course of an investigative detention, to conduct a limited search for
weapons for his or her own protection. See Adams v. Williams, 407 U.S. 143,
147-48, 92 S.Ct. 1921, 1924, 32 L.Ed.2d 612 (1972).

12

To determine whether an investigative detention or a protective search is

reasonable under the Fourth Amendment, the inquiry is twofold. First, the
officer's action must be "justified at its inception." Terry, 392 U.S. at 20, 88
S.Ct. at 1879. For an investigative detention, the officer must have an
articulable and reasonable suspicion that the person detained is engaged in
criminal activity. Sokolow, 490 U.S. at 7, 109 S.Ct. at 1585. For a protective
search to be "justified at its inception," the officer must not only harbor an
articulable and reasonable suspicion that the person is armed and dangerous,
the officer must also be "entitled to make a forcible stop." Adams, 407 U.S. at
146-48, 92 S.Ct. at 1923-24 (footnote omitted). See also Terry, 392 U.S. at 32,
88 S.Ct. at 1885 (Harlan, J., concurring) (if "a policeman has a right ... to
disarm a person for his own protection, he must first have a right not to avoid
him but to be in his presence"); 1 Wayne R. LaFave & Jerold H. Israel,
Criminal Procedure 3.8(e), at 307 (1984).

13

The second prong of the reasonableness inquiry of either an investigative

detention or a protective search is whether the officer's action is "reasonably
related in scope to the circumstances which justified the interference in the first
place." Terry, 392 U.S. at 20, 88 S.Ct. at 1879. An investigative detention may
be unreasonable because it is "a more serious intrusion on [one's] personal
liberty than is allowable on mere suspicion of criminal activity." Royer, 460
U.S. at 502, 103 S.Ct. at 1326-27 (seizure of defendant, although supported by
reasonable suspicion, was unreasonable where defendant was "as a practical

matter ... under arrest"). See also United States v. Place, 462 U.S. 696, 709-10,
103 S.Ct. 2637, 2645-46, 77 L.Ed.2d 110 (1983) (ninety-minute detention of
traveler's luggage unreasonable). But see United States v. Montoya de
Hernandez, 473 U.S. 531, 542-44, 105 S.Ct. 3304, 3311-12, 87 L.Ed.2d 381
(1985) (sixteen-hour detention of suspected alimentary canal smuggler at
border not unreasonable); Sharpe, 470 U.S. at 682, 105 S.Ct. at 1573 (twentyminute detention not unreasonable when police act diligently and suspect's
action contributed to delay). Similarly, a protective search may be unreasonable
when it is not limited to ensuring that the suspect is not armed. See Sibron v.
New York, 392 U.S. 40, 65, 88 S.Ct. 1889, 1904, 20 L.Ed.2d 917 (1968)
(protective search for weapons unreasonable when officer reached inside
defendant's pocket without first conducting initial limited exploration).
Regardless of whether the inquiry focuses on an investigative detention or a
protective search, the reasonableness of the officer's action necessarily depends
upon the justification for the action. Royer, 460 U.S. at 500, 103 S.Ct. at 1325;
Terry, 392 U.S. at 20, 88 S.Ct. at 1879.
B.
14

The district court analyzed this case as if it were an investigative detention. The
court determined that Defendants were seized when Officer LeMasters ordered
King at gunpoint to place his hands on the steering wheel, and found this
seizure to violate the Fourth Amendment because Officer LeMasters lacked any
reasonable suspicion that Defendants were engaged in criminal activity. In
essence, the court held that the seizure was not "justified at its inception."

1.
15

The government's "reasonableness" argument suggests that Officer LeMasters'

seizure of Defendants can be justified by her concern for the safety of herself
and the bystanders due to her observation of the pistol within Defendants'
immediate reach. As authority for its position, the government cites
Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977)
(per curiam), wherein the Supreme Court held the Fourth Amendment does not
preclude the police from ordering a legally detained motorist out of his vehicle,
absent any suspicion of wrongdoing. Id. at 109-10, 98 S.Ct. at 333. In Mimms,
police officers stopped the defendant's car due to an expired license plate. As
part of their standard procedure, one of the officers ordered the defendant out of
the car. As the defendant stepped from the car, the officer noticed a bulge
under his jacket and immediately frisked the defendant, finding a loaded gun
which led to a concealed weapons charge. There was "no question" that the
initial detention of the defendant due to the expired license plate was proper, id.

at 109, 98 S.Ct. at 332, and the Court had "little doubt" that the subsequent
frisk of the defendant after the officers observed the bulge in his jacket was
permissible. Id. at 111-12, 98 S.Ct. at 334. In holding that the officers did not
violate the Fourth Amendment by ordering the defendant out of the car without
any particularized suspicion, the Supreme Court balanced the "important"
interest of the officer's safety against the "de minimus" "intrusion into the
driver's personal liberty occasioned ... by the order to get out of the car." Id. at
111, 98 S.Ct. at 333. As the Court stated, "[w]hat is at most a mere
inconvenience cannot prevail when balanced against legitimate concerns for the
officer's safety." Id. (footnote omitted).
16

Mimms does not support the government's suggestion that Officer LeMasters'
seizure of Defendants was justified at its inception by her concern for the safety
of herself and the bystanders due to the presence of the gun. In Mimms, the
defendant was lawfully detained due to an expired license plate, and the de
minimus intrusion in the interest of the officers' safety was reasonable partly
because the police already had a basis to detain the individual. Mimms, 434
U.S. at 109, 98 S.Ct. at 332. See also New York v. Class, 475 U.S. 106, 117-18,
106 S.Ct. 960, 968, 89 L.Ed.2d 81 (1986) (de minimus intrusion reasonable
partly because probable cause had focused suspicion on the affected
individual). The government's argument would extend Mimms to allow police
officers to seize any citizen whom the officers have any articulable reason to
believe presents a threat to their safety. In a state such as New Mexico, which
permits persons to lawfully carry firearms, the government's argument would
effectively eliminate Fourth Amendment protections for lawfully armed
persons. Moreover, the government's "reasonableness" standard would render
toothless the additional requirement that the scope and duration of detention be
carefully tailored to its underlying justification. Royer, 460 U.S. at 500, 103
S.Ct. at 1325; Terry, 392 U.S. at 20, 88 S.Ct. at 1879. For example, if a police
officer's safety could justify the detention of an otherwise lawfully armed
person, the detention could last indefinitely because a lawfully armed person
would perpetually present a threat to the safety of the officer. In short, while the
safety of police officers is no doubt an important government interest, it can
only justify a Fourth Amendment intrusion into a person's liberty "[s]o long as
the officer is entitled to make a forcible stop...." Adams, 407 U.S. at 146, 92
S.Ct. at 1923 (footnote omitted). See also Terry, 392 U.S. at 32, 88 S.Ct. at
1885 (Harlan, J., concurring); 1 LaFave, supra, 3.8(e).

2.
17

While we cannot accept the government's attempt to justify the seizure of

Defendants based on Officer LeMasters' safety concerns due to the presence of

the pistol, neither can we accept the district court's application of the reasonable
suspicion of criminal activity standard to the facts of this case. The reasonable
suspicion of criminal activity standard presupposes an investigative purpose by
the detaining officer. See, e.g., Royer, 460 U.S. at 502, 103 S.Ct. at 1326-27
(defendant suspected of carrying drugs); United States v. Brignoni-Ponce, 422
U.S. 873, 881, 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607 (1975) (defendants
suspected of being illegal aliens); Terry, 392 U.S. at 22-23, 88 S.Ct. at 1880-81
(defendants suspected of planning robbery). Officer LeMasters approached
Defendants' car, not for any investigative purpose, but to alleviate what she
perceived as a traffic hazard resulting from King's incessant honking at the
intersection,2 and she ordered King out of the car, again not for any
investigative purpose, but to alleviate a perceived threat to the safety of herself
and the bystanders due to the presence of the pistol.
18

Reasonableness under the Fourth Amendment "depends on a balance between

the public interest and the individual's right to personal security free from
arbitrary interference by law officers." Brignoni-Ponce, 422 U.S. at 878, 95
S.Ct. at 2578. See also Terry, 392 U.S. at 21, 88 S.Ct. at 1880 (reasonableness
determination balances " 'need to ... [seize] against the invasion which the ...
[seizure] entails' ") (brackets in original) (quoting Camara v. Municipal Court,
387 U.S. 523, 534-35, 87 S.Ct. 1727, 1734, 18 L.Ed.2d 930 (1967)). Permitting
investigative detentions on less than probable cause reflects a reasoned
judgment by the Supreme Court that the governmental interest in effective
crime prevention and detection outweighs minor intrusions into individual
liberty occasioned by brief investigatory stops. See Terry, 392 U.S. at 22-23, 88
S.Ct. at 1881. See also Montoya de Hernandez, 473 U.S. at 541, 105 S.Ct. at
3310 ("The 'reasonable suspicion' standard ... effects a needed balance between
private and public interests when law enforcement officials must make a limited
intrusion on less than probable cause."); Royer, 460 U.S. at 500, 103 S.Ct. at
1325 ("The predicate permitting seizures on suspicion short of probable cause
is that law enforcement interests warrant a limited intrusion on the personal
security of the suspect."). However, when a police officer initiates an encounter
with a person for a purpose other than to investigate criminal activity, the
governmental interest in effective crime prevention and detection is irrelevant.
See Montoya de Hernandez, 473 U.S. at 537, 105 S.Ct. at 3308 (reasonableness
inquiry must consider the nature of the seizure).

19

"Encounters are initiated by the police for a wide variety of purposes, some of
which are wholly unrelated to the desire to prosecute for crime." Terry, 392
U.S. at 13, 88 S.Ct. at 1875 (footnote omitted). See also I ABA Standards for
Criminal Justice, 1-1.1(c) at 18 (2d ed. 1986) ("those aspects of police
function that relate to minimizing the likelihood of disorder ... are equal in their

importance to the police function in identifying and punishing wrongdoers").

Indeed, police officers are not only permitted, but expected, to exercise what
the Supreme Court has termed "community caretaking functions, totally
divorced from the detection, investigation, or acquisition of evidence relating to
the violation of a criminal statute." Cady v. Dombrowski, 413 U.S. 433, 441, 93
S.Ct. 2523, 2527, 37 L.Ed.2d 706 (1973). In the course of exercising this
noninvestigatory function, a police officer may have occasion to seize a person,
as the Supreme Court has defined the term for Fourth Amendment purposes, in
order to ensure the safety of the public and/or the individual, regardless of any
suspected criminal activity. See, e.g., United States v. Rideau, 949 F.2d 718,
720 (5th Cir.1991) (officers stopped defendant for his own safety and the safety
of others after observing him standing in the middle of the road at night,
dressed in dark clothes, and apparently intoxicated), vacated on other grounds,
969 F.2d 1572 (5th Cir.1992) (en banc) (agreeing with panel on this point);
United States v. Wallace, 889 F.2d 580, 582 (5th Cir.1989) (officers detained
defendant for his own safety after being informed that he possessed gun and
had threatened suicide), cert. denied, 497 U.S. 1006, 110 S.Ct. 3243, 111
L.Ed.2d 753 (1990). The fact that the officer may not suspect the individual of
criminal activity does not render such a seizure unreasonable per se as Terry
only requires "specific and articulable facts which ... reasonably warrant [an]
intrusion" into the individual's liberty. Terry, 392 U.S. at 21, 88 S.Ct. at 1880.
See also Rideau, 969 F.2d at 1574; Wallace, 889 F.2d at 582. Cf. State v.
Vistuba, 251 Kan. 821, 840 P.2d 511, 514 (1992) (safety reasons based on
specific, articulable facts may justify vehicle stop); State v. Marcello, 599 A.2d
357, 358 (Vt.1991) (same); State v. Pinkham, 565 A.2d 318, 319 (Me.1989);
State v. Oxley, 127 N.H. 407, 503 A.2d 756, 759 (1989) (same).
20

However, a person's Fourth Amendment rights are not eviscerated simply

because a police officer may be acting in a noninvestigatory capacity for "[i]t is
surely anomalous to say that the individual ... [is] fully protected by the Fourth
Amendment only when the individual is suspected of criminal behavior."
Camara, 387 U.S. at 530, 87 S.Ct. at 1731 (footnote omitted). Whether the
seizure of a person by a police officer acting in his or her noninvestigatory
capacity is reasonable depends on whether it is based on specific articulable
facts and requires a reviewing court to balance the governmental interest in the
police officer's exercise of his or her "community caretaking function" and the
individual's interest in being free from arbitrary government interference. See
Brignoni-Ponce, 422 U.S. at 878, 95 S.Ct. at 2578; Terry, 392 U.S. at 21, 88
S.Ct. at 1880.

21

In the present case, Officer LeMasters was clearly exercising her "community
caretaking function" when she approached Defendants' car during the course of

her investigation of a vehicle accident. See Cady, 413 U.S. at 441, 93 S.Ct. at
2528 (investigation of vehicle accidents is within police officers' community
caretaking function). King's honking at the accident site created an specific,
articulable basis for Officer LeMasters to believe that he might cause a second
accident. Accordingly, Officer LeMasters was justified in approaching
Defendants' car and could have briefly detained Defendants in order to inform
King of the hazardous conditions and to advise him to cease honking,
regardless of whether King's actions violated any traffic laws.3 In balancing the
respective Fourth Amendment interests, we note that Defendants were already
detained at the intersection, not by Officer LeMasters, but by the congested
traffic conditions due to the disabled vehicle in the intersection. Therefore,
Defendants' Fourth Amendment interest is limited to the "incremental"
intrusion of being required to listen to Officer LeMasters while stuck in traffic.
See Mimms, 434 U.S. at 109, 98 S.Ct. at 332; Walker, 941 F.2d at 1089. On
the other hand, the governmental interest in investigating accidents and
ensuring the public safety at accident sites, while perhaps not compelling, is
one we have come to expect from local police officers and is sufficiently
important to outweigh the relatively minor intrusions on motorists, who are
already stuck in traffic and whose conduct arguably creates a hazard. Under the
facts of this case, Officer LeMasters had a reasonable and articulable basis to
briefly detain King in order to advise him to cease honking his horn.
22

When Officer LeMasters observed a pistol within Defendants' immediate reach,

she escalated the encounter into a seizure, again not for an investigative
purpose, but to alleviate a perceived threat to the safety of herself and the
bystanders. At this point, King was in substantially the same position as the
defendant in Mimms. The officers in Mimms ordered the defendant out of his
car, prior to observing the bulge in his jacket, as a matter of routine procedure
in order to ensure their safety during the traffic stop. Here, Officer LeMasters
saw the pistol before ordering King out of the car. Thus, her concern for her
safety was based on specific articulable facts, making the justification for
ordering King out of the car even more critical than that presented by the
officers in Mimms.

23

Officer LeMasters' observation of an apparently loaded pistol within

Defendants' immediate reach would justify her separation of Defendants from
the pistol in order to ensure her own safety during the encounter. See Michigan
v. Long, 463 U.S. 1032, 1049, 103 S.Ct. 3469, 3480-81, 77 L.Ed.2d 1201
(1983) (permitting limited search of passenger compartment of lawfully
detained automobile and seizure of any weapon found based on reasonable
suspicion that driver is dangerous and may gain control of a weapon); Adams,
407 U.S. at 147-48, 92 S.Ct. at 1924 (permitting limited search of lawfully

detained person's outer clothing and seizure of any weapon found based on
reasonable suspicion that person is armed); Terry, 392 U.S. at 22, 88 S.Ct. at
1880 (same). The governmental interest in the safety of police officers
outweighs the individual's Fourth Amendment interest when an officer has an
objective basis to believe that the person being lawfully detained is armed and
dangerous. See Long, 463 U.S. at 1051, 103 S.Ct. at 3482; Terry, 392 U.S. at
23-24, 88 S.Ct. at 1881. Moreover, Defendants' lawful possession of the pistol
has no bearing on the reasonableness of Officer LeMasters' actions because the
interest justifying her separation of Defendants from the pistol is her safety, and
a legally possessed weapon presents just as great a danger to her safety as an
illegal one. Long, 463 U.S. at 1052 n. 16, 103 S.Ct. at 3482 n. 16; Adams, 407
U.S. at 146, 92 S.Ct. at 1923.
24

In short, Officer LeMasters had not yet advised King of the hazardous
conditions his honking created, which she was entitled to do, when she
observed an apparently loaded pistol within the immediate reach of both him
and his passenger. Officer LeMasters was entitled to separate Defendants from
the pistol by ordering them out of the car for the duration of her advisement.
Officer LeMasters had an articulable safety reason justifying the initial
intrusion, and any additional intrusion in asking Defendants to exit the car
could "only be described as de minimus." Mimms, 434 U.S. at 111, 98 S.Ct. at
333. To hold otherwise, would " 'unreasonab[ly] [ ] require that police officers
take unnecessary risks in the performance of their duties.' " Id. at 110, 98 S.Ct.
at 333 (quoting Terry, 392 U.S. at 23, 88 S.Ct. at 1881).

C.
25

Having found that Officer LeMasters' detention of Defendants was justified at

its inception and that Officer LeMasters could, in the course of the detention,
separate Defendants from the pistol, our inquiry now turns to whether Officer
LeMasters' action was "reasonably related in scope to the circumstances which
justified the interference in the first place."4 Terry, 392 U.S. at 20, 88 S.Ct. at
1879. See also Royer, 460 U.S. at 500, 103 S.Ct. at 1325. On this point, the
government's reliance on Mimms is misplaced. In Mimms, a critical factor was
the "de minimus" intrusion on the defendant's liberty resulting from the
officer's request to step out of the car during the course of a traffic stop which
the Court considered nothing more than a "mere inconvenience." Id. See also
Maryland v. Buie, 494 U.S. 325, 335 n. 3, 110 S.Ct. 1093, 1099 n. 3, 108
L.Ed.2d 276 (1990); Class, 475 U.S. at 117, 106 S.Ct. at 967. Here, Officer
LeMasters drew her gun and pointed it at King, threatening to shoot him if he
did not comply with her order. Her call for backup assistance led other officers
to encircle Defendants' car with weapons drawn. Officer Palone ordered King

to his knees, and Officer LeMasters handcuffed him after both Defendants were
separated from the pistol and no longer presented a threat to the safety of any of
the officers or bystanders. This level of governmental intrusion on Defendants'
liberty is not remotely similar to ordering a motorist to step out of his car and
can hardly be considered "de minimus" or a "mere inconvenience." See United
States v. Walker, 941 F.2d 1086, 1089-90 (10th Cir.1991) (officer's additional
questioning of lawfully detained motorist concerning drugs was not "mere
inconvenience"), cert. denied, --- U.S. ----, 112 S.Ct. 1168, 117 L.Ed.2d 414
(1992). Cf. Class, 475 U.S. at 117, 106 S.Ct. at 967 (reaching inside car to
remove papers obstructing VIN was de minimus intrusion).
26

Whether Officer LeMasters' seizure of Defendants was reasonably related in

scope to its justification must focus on whether the facts available to the officer
would "warrant a man of reasonable caution in the belief" that the action taken
was appropriate. Terry, 392 U.S. at 21-22, 88 S.Ct. at 1880. There are no
"bright line" rules in assessing whether Officer LeMasters' conduct was
reasonably related in scope to its justification; rather, our evaluation is guided
by "common sense and ordinary human experience." Sharpe, 470 U.S. at 685,
105 S.Ct. at 1575. See also Montoya de Hernandez, 473 U.S. at 544, 105 S.Ct.
at 3312 (no "hard and fast time limits" on Terry stop before it becomes an
arrest). While police officers are not required to use the least intrusive means in
the course of a detention, we must determine whether Officer LeMasters'
failure to use less intrusive means was unreasonable. Sharpe, 470 U.S. at 68687, 105 S.Ct. at 1575-76.

27

Notwithstanding our reluctance to "indulge in 'unrealistic second-guessing' " of

police officers in determining whether a seizure was reasonably related in scope
to its justification, Montoya de Hernandez, 473 U.S. at 542, 105 S.Ct. at 3311
(quoting Sharpe, 470 U.S. at 646, 105 S.Ct. at 1563), we hold that Officer
LeMasters' failure to use less intrusive means to ensure her safety while
advising King to cease honking was unreasonable. The traffic hazard King
presented, which was the basis for the detention, was alleviated when King
ceased honking and explained himself prior to Officer LeMasters' observation
of the pistol; nonetheless, Officer LeMasters had the right to explain the
situation to King and ensure that he would not continue to present a traffic
hazard. Once she saw the gun, Officer LeMasters could separate Defendants
from the gun for her own safety by ordering Defendants out of the car.
However, Officer LeMasters' conduct, as noted above, went far beyond what
was necessary to ensure her safety while advising Defendants of the hazardous
traffic conditions. Officer LeMasters initiated what was essentially an arrest
procedure.5 See United States v. Maez, 872 F.2d 1444, 1450-51 (10th
Cir.1989) (defendants were effectively arrested when police surrounded house

and ordered them to come out). Under the facts presented here, Officer
LeMasters' conduct was not "reasonably related in scope to the circumstances
which justified the interference in the first place," Terry, 392 U.S. at 20, 88
S.Ct. at 1879, and went far beyond what was necessary to protect her safety.6
Accordingly, the seizure of Defendants was unreasonable in violation of the
Fourth Amendment.
III.
28

Having determined that Officer LeMasters' detention of Defendants was

unreasonable under the Fourth Amendment, we turn to the question of whether
the drugs which were discarded by Burdex were the fruit of the unlawful
detention. In determining whether evidence discovered by the police following
a Fourth Amendment violation is "fruit of the poisonous tree" and therefore
subject to the exclusionary rule, the question is "whether, granting
establishment of the primary illegality, the evidence to which the instant
objection is made has been come at by exploitation of that illegality or instead
by means sufficiently distinguishable to be purged of the primary taint." Wong
Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 488, 9 L.Ed.2d 441
(1963) (quotations omitted). Because the issue is fact intensive, Brown v.
Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 2261-62, 45 L.Ed.2d 416 (1975);
United States v. Ward, 961 F.2d 1526, 1535 (10th Cir.1992), we review the
district court's finding under a clearly erroneous standard.

29

The government contends that Burdex voluntarily abandoned the drugs, and
this act was a sufficient intervening circumstance to purge the taint of the
Fourth Amendment violation. In determining whether "the evidence to which
the instant objection is made has been come at by exploitation of th[e] illegality
or instead by means sufficiently distinguishable to be purged of the primary
taint," Wong Sun, 371 U.S. at 488, 83 S.Ct. at 417, several factors guide our
inquiry including the "temporal proximity" of the Fourth Amendment violation
and Burdex's discarding of the evidence, any "intervening circumstances," and
"the purpose and flagrancy of the official misconduct." Brown, 422 U.S. at 60304, 95 S.Ct. at 2262 (citations and footnotes omitted). See also Dunaway v.
New York, 442 U.S. 200, 218, 99 S.Ct. 2248, 2259, 60 L.Ed.2d 824 (1979).
Moreover, when, as here, the government asserts that an act by the defendant
purges the taint of the illegality, the voluntariness of the defendant's act is a
"threshold requirement." Brown, 422 U.S. at 604, 95 S.Ct. at 2262. See also
Ward, 961 F.2d at 1535 ("[W]hen an alleged abandonment follows a Fourth
Amendment violation, the issue is whether the abandonment of property was
voluntary.").

30

Considering these factors, we cannot say that the district court's finding that the
drugs were the fruit of the unlawful detention is clearly erroneous. Given that
Burdex discarded the drugs during the course of the unlawful seizure, and
Officer Armijo almost immediately retrieved the drugs after being alerted by a
bystander, the "temporal proximity" between the Fourth Amendment violation
and Burdex's discarding of the evidence weighs heavily in support of a finding
that the drugs were the fruit of the unlawful seizure. See Brown, 422 U.S. at
604, 95 S.Ct. at 2262 (confession which came two hours after illegal arrest held
to be fruit); Wong Sun, 371 U.S. at 486, 83 S.Ct. at 416 (statement made
immediately after unlawful arrest held to be fruit). Moreover, Officer
LeMasters' conduct here came very close to approaching an arrest for which
there was no probable cause; thus, "the flagrancy of the official misconduct"
also weighs in favor of a finding that the drugs were the fruit of an unlawful
seizure.

31

Furthermore, we disagree with the government's suggestion that Burdex's act of

discarding the drugs constituted a voluntary abandonment which is a sufficient
intervening circumstance to purge the taint of the Fourth Amendment violation.
A confession by a defendant during an illegal detention is not an intervening
circumstance which purges the taint of a Fourth Amendment violation. See
Dunaway, 442 U.S. at 219, 99 S.Ct. at 2260; Brown, 422 U.S. at 604, 95 S.Ct.
at 2262. Likewise, " '[a]bandonment will not be recognized when it is the result
of illegal police conduct.' "7 Ward, 961 F.2d at 1535 (quoting United States v.
Brady, 842 F.2d 1313, 1315 n. 7 (D.C.Cir.1988)). In United States v. Newman,
490 F.2d 993 (10th Cir.1974), two containers holding marijuana fell out of the
back of the defendants' truck as they unexpectedly drove off during an unlawful
search. We held that the initial illegal intrusion "tainted all subsequent events
leading to the ultimate seizure of the marijuana," and therefore "contraband
evidence was inadmissible as the 'fruit of the poisonous tree.' " Id. at 995.
Similarly, in United States v. Borcich, 460 F.2d 1391 (10th Cir.1972), the
defendants were unlawfully seized on a remote highway. One of the defendants
was ordered to drive his truck between the two police cars to the nearest city
which was over 100 miles away. As they approached the city, the defendant
driving the truck threw a small container from the window, which the officers
recovered and found to contain marijuana. We held that the marijuana was the
fruit of the illegal detention, and that the primary taint had not been purged by
the considerable lapse of time during the 100 mile journey. Id. at 1394. See also
United States v. Beck, 602 F.2d 726, 730 (5th Cir.1979) (defendant's discarding
of marijuana cigarette upon being unlawfully seized was not voluntary
abandonment sufficient to purge taint). In short, it was not clearly erroneous for
the district court to find that Burdex's discarding of the drugs during the course
of the unlawful detention was not "sufficiently an act of free will to purge the

primary taint of the unlawful invasion." Wong Sun, 371 U.S. at 486, 83 S.Ct. at
416 (suppressing defendant's statement immediately following illegal arrest).
32

AFFIRMED.

33

ANDERSON, J., concurs in the judgment only.

Defendants were charged with possession with intent to distribute cocaine base
and cocaine, 21 U.S.C. 841(a)(1), (b)(1)(B), (b)(1)(C), and using and carrying
a firearm during the commission of a drug trafficking offense. 18 U.S.C.
924(c)(1). Burdex was also charged with possession of a firearm by a felon. Id.
922(g)(1)

Relying on the Supreme Court's statement in Brower v. County of Inyo, 489

U.S. 593, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989), that a Fourth Amendment
seizure occurs "only when there is a governmental termination of freedom of
movement through means intentionally applied," id. at 597, 109 S.Ct. at 1381,
King argues that Officer LeMasters' lack of subjective intention to seize
Defendants, prior to her observation of the pistol, precludes any finding that
Defendants were seized prior to the point Officer LeMasters drew her revolver.
Brower does not add a police officer's subjective intention to the inquiry of
whether a person is seized for Fourth Amendment purposes. Rather, Brower
stands merely for the proposition that the Fourth Amendment does not address
"the accidental effects of otherwise lawful government conduct." Id. at 596, 109
S.Ct. at 1381. Nonetheless, we agree that Defendants were not seized until
Officer LeMasters drew her revolver because it was at this point that Officer
LeMasters' conduct would communicate to a reasonable person that he or she
was unable to terminate the encounter. Bostick, --- U.S. at ----, 111 S.Ct. at
2389. Be that as it may, the fact that Defendants were not seized until Officer
LeMasters drew her revolver does not preclude us from considering
circumstances prior to the seizure in determining the reasonableness of Officer
LeMasters' conduct. See Montoya de Hernandez, 473 U.S. at 537, 105 S.Ct. at
3308 (reasonableness inquiry must consider all of the surrounding
circumstances)

Had King violated a traffic law, Officer LeMasters would certainly have had
grounds to detain Defendants. See Mimms, 434 U.S. at 109, 98 S.Ct. at 332;
United States v. Horn, 970 F.2d 728, 731 (10th Cir.1992). However, the
government does not argue that King's honking violated any law

Although the district court did not address this issue because it held that the

seizure was not justified at its inception, we must uphold the district court's
ultimate ruling "if there is any reasonable view of the evidence to support it."
United States v. Neu, 879 F.2d 805, 807 (10th Cir.1989). See also United
States v. Morgan, 936 F.2d 1561, 1565 (10th Cir.1991), cert. denied, --- U.S. ---, 112 S.Ct. 1190, 117 L.Ed.2d 431 (1992). Given that the evidentiary record
before us is well developed, and the "ultimate determination of reasonableness
under the Fourth Amendment" is a question of law, United States v. Walker,
941 F.2d 1086, 1090 (10th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1168,
117 L.Ed.2d 414 (1992), we see no purpose in remanding to the district court
for resolution of this issue
5

In a state, other than New Mexico, where it is illegal to transport firearms in the
passenger compartment of a car, Officer LeMasters, upon observing the pistol,
would have had probable cause to arrest Defendants, and, therefore, her actions
would have been reasonable

In United States v. Merritt, 695 F.2d 1263 (10th Cir.1982), cert. denied, 461
U.S. 916, 103 S.Ct. 1898, 77 L.Ed.2d 286 (1983), we held that the fact that
officers approached the defendant with guns drawn and pointed at him did not
render the investigative detention unreasonable. Id. at 1273. In Merritt, the
officer's actions were reasonable in light of the officer's suspicion that the
defendant was an armed and dangerous murder suspect. Id. at 1274. In contrast,
we consider similar actions by Officer LeMasters to be unreasonable because
the justification for the detention was merely to ensure her safety while
advising a lawfully armed motorist to cease honking his horn

The government's reliance on California v. Hodari D., --- U.S. ----, 111 S.Ct.
1547, 113 L.Ed.2d 690 (1991), United States v. Morgan, 936 F.2d 1561 (10th
Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1190, 117 L.Ed.2d 431 (1992),
and United States v. Jones, 707 F.2d 1169 (10th Cir.), cert. denied, 464 U.S.
859, 104 S.Ct. 184, 78 L.Ed.2d 163 (1983), is misplaced because in these
cases, the items seized were abandoned prior to any unlawful seizure of the
defendants. Because the defendants were not unlawfully seized prior to
discovery of the evidence which the defendants sought to suppress, none of
these cases considered whether the defendants' acts in abandoning the evidence
were "sufficiently a product of free will to break ... the causal connection
between the illegality" and the discovery of the evidence. Brown, 422 U.S. at
590, 95 S.Ct. at 2255